SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1468 OF 2008

@ S.L.P.(CRIMINAL) NO. 6803 OF 2006

Union of  India …Appellant

Vs.

Ranu Bhandari  …Respondent

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. On  15th December,  2005,  the  Joint  Secretary

(COFEPOSA),   Government  of  India,  Ministry  of

Finance, Department of Revenue, New Delhi, issued

an order of detention against Shri Sanjay Bhandari,

the  husband  of  the  respondent/writ  petitioner,

under Section 3(1) of the Conservation of Foreign

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Exchange  and  Prevention  of  Smuggling  Activities

Act, 1974, (hereinafter referred to as “COFEPOSA”),

to  prevent  the  detenu  from  smuggling  goods  in

future.

3. The facts which are said to have led to the

passing  of  the  detention  order  are  briefly

summarized hereunder.

4. Shri Sanjay Bhandari obtained Export Promotion

Capital  Goods   Scheme  (E.P.C.G.)  licences  as

Service Provider in respect of four firms/companies

which were floated by him from time to time and

imported  vehicles  at  concessional  rates  for

personal  use  in  flagrant  misuse  of  the  said

licences.  The  said  vehicles  were  never  used  for

tourist  purposes  as  declared  for  obtaining  the

E.P.C.G. licences and the Foreign Inward Remittance

Certificate shown by him did not relate  to his

earnings  from  the  use  of  the  imported  cars.  In

addition to the above, all the vehicles which were

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imported  under  the  aforesaid  licences  were

registered as private  vehicles.

5. Shri Sanjay Bhandari was found to have violated

various provisions/conditions of the Exim Policy,

Foreign  Trade  Policy  and  Customs  exemptions

notifications  and  during  the  investigations

conducted  by  the  Directorate  of  Revenue

Intelligence, 51 out of 61 vehicles were seized,

though most of them were released provisionally on

payment of differential duty and execution of Bonds

and  Bank  Guarantees.   Shri  Bhandari’s  said

activities were held to amount  to smuggling as

defined  in  Section  2(39)  of  the  Customs  Act  as

adopted in Section 2(e) of the COFEPOSA  Act, 1974.

Considering  the  nature  and  gravity  of  Shri

Bhandari’s activities over a period of time and his

high potentiality and propensity to indulge in such

prejudicial  activities  in  future,  the  order  of

detention was issued against him on 15th December,

2005, under Section 3(1) of the COFEPOSA Act, 1974.

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6. Aggrieved  by  the  order  of  detention,  the

detenu’s wife, Ranu Bhandari, filed a Habeas Corpus

petition before the Delhi High Court challenging

the legality of the same mainly on the ground of

non-supply of various documents, which according to

the respondent, prevented the detenu from making an

effective  representation  to  the  detention  order.

Being  satisfied  that  certain  relevant  documents

which  had  been  considered  by  the  Detaining

Authority while issuing the detention order had not

been supplied to the detenu to make an effective

representative against his continued detention, the

High Court allowed his Writ Petition and quashed

the detention order dated 15th December, 2005, which

has been challenged in the appeal.

7. The Union of India is in appeal against the

judgment and order of the High Court.

8. Learned  Additional Solicitor  General, Mr.  A.

Sharan, questioned the decision of the High Court

on the ground  that all the documents which had

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been  considered  by  the  Detaining  Authority  and

found  to  be  relevant  in  issuing  the  detention

order, had been indicated in the detention order

and  supplied  to  the  detenu.  Furthermore,  it  was

pointed out by the learned Solicitor General that

the documents which were not supplied originated

from the detenu himself.

9. The  learned   Additional  Solicitor  General

submitted that the question  as to what documents

were required to be  supplied to a detenu along

with  the  detention  order  has  fallen   for

consideration of this Court in innumerable cases.

The consistent view which has been taken by this

Court is that documents which had been relied upon

by the Detaining Authority to come to a decision

that  it  was  necessary  to  issue  the  order  of

detention, would have to be supplied to the detenu

to enable him to understand the grounds on which

the detention order had been passed and to make an

effective  representation  in  respect  thereof,  in

keeping with Article 22(5) of the Constitution.

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10.  The learned Additional Solicitor General also

submitted  that  apart  from  the  aforesaid  view  of

general application, two other views had also been

taken  by  this  Court.  One  view  was  that  all

documents referred to or mentioned in the detention

order would have to be supplied to the detenu and

if even one of them was not supplied, the detention

order would stand vitiated. The other view was that

except for the documents which were relevant and

had been relied upon by the Detaining Authority in

passing  the  detention  order,  other  documents

mentioned  in  the  detention  order  or  referred  to

therein were not required to be supplied to the

detenu.  The  learned  Additional  Solicitor  General

reiterated  that  in  the  instant  case  all  the

documents  on  which  the  Detaining  Authority  had

relied while issuing the detention order, had been

duly supplied to the detenu, who, however, insisted

that he should have also been provided with certain

documents  which  were  within  his  knowledge.   The

said  documents  had  been  itemised  as  his

representation  dated  12.12.2005,  the  show-cause

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notice dated 22.7.2004 which had been received by

him,  his  writ  petition  No.5431  of  2002  and  the

I.E.C. Code pertaining to the three proprietorship

firms belonging to him, which had not been placed

before the Detaining Authority. It was submitted

that not only did the detenu have knowledge of all

the said documents, but they were available with

the detenu.

11. In  support  of  his  aforesaid  contention  the

learned Additional Solicitor General firstly relied

on  the  decision  of  this  Court  in  Radhakrishnan

Prabhakaran vs. State of Tamil Nadu [(2000) 9 SCC

1790],  wherein  while  considering  an  identical

question  this  Court,  inter  alia,  observed  as

follows:

“We  make  it  clear  that  there  is  no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is more important is that copies of  only such of those documents  as have been relied on by the detaining authority  for  reaching  the satisfaction that preventive detention of  the  detenu  is  necessary  shall  be supplied to him.”

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It  was  also  observed  that  since  the  bail

application  of  the  detenu  had  not  engaged  the

attention of the Detaining Authority while passing

the  detention  order,  the  non-supply  or  non-

placement  thereof  before  the  Detaining  Authority

would not vitiate the detention order.

12. The learned  Additional Solicitor General  also

referred to and relied upon the decision of this

Court  in J. Abdul Hakeem vs.  State of T.N. and

others [2005) 7 SCC 70],  wherein after considering

some of the earlier decisions of this Court, the

learned Judges quoted, with approval, the decision

of this Court in  Radhakrishnan Prabhakaran’s case

(supra) and the observations made therein.

13. Relying on the aforesaid view, this Court had

held that although the copy of the passport

of the detenu had not been supplied to him,

though reference had been made to the same in

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the  detention  order,  what  had  weighed  with

the  Detaining  Authority  in  issuing  the

detention order was a statement made by the

detenu in his own hand-writing admitting that

he  had  made  several  visits  outside  the

country.   The  reference  to  the  passport

entries  had  been  made  only  by  way  of

reference  and  was  not  the  basis  of  the

detention order.  On the facts of the said

case, being of the view that non-supply of

the  passport  of  the  detenu  had  not

prejudicially affected his right to make an

effective representation against the order of

detention, it was held that the non-supply of

the copy of the passport would not vitiate

the detention order.

14. Further reference was made to the decision of

this Court in Sunila Jain vs Union of India

[(2006)  3  SCC  321],  wherein  also  several

decisions  of  this  Court  were  considered,

including  that  of  Radhakrishnan  Prabhakaran

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(supra), and it was held that non-placement

of  a  copy  of  the  bail  application  of  the

detenu before the Detaining Authority was not

sufficient to vitiate the order of detention,

since the same was within the knowledge of

the  Detaining  Authority  and  had  been  taken

into  consideration  while  passing  the

detention order.

15.  The  learned   Additional  Solicitor  General

urged that the instant case would fall within that

class of cases wherein this Court has held that

non-supply of all the documents mentioned in the

detention order, which had no relevance in regard

to  the  Detaining  Authority’s  satisfaction  in

passing the order of detention, would not vitiate

the same. It was submitted that the High Court had

erroneously  proceeded  on  the  basis  of  the  other

class of cases wherein this Court had held that

even if one of the grounds of detention was found

to be vague or defective or any of the documents on

which  reliance  had  been  placed  by  the  Detaining

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Authority had not been supplied to the detenu, it

would  vitiate  the  detention  order,  although  the

same did not apply in the facts of this case. It

was submitted that the impugned order of the High

Court was contrary to the views expressed by this

Court  in  similar  matters  and  the  same  was,

therefore, required to be set aside.  

16. The judgment and order of the High Court was,

however,  strongly  defended  on  behalf  of  the

respondent-wife of the detenu. It was submitted by

Mr. Vikram Chaudhary, learned counsel appearing for

the respondent, that this Court had consistently

held  that  since  an  order  of  detention  adversely

affected  the  personal  liberty  and  individual

freedom of a citizen and struck at the very roots

of the fundamental rights guaranteed under Articles

19, 20, 21 and even 22 of the Constitution, the

same  had  to  be  carefully  scrutinized  when

challenged  by  the  detenu  on  any  of  the  grounds

available to him or her.

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17. It  was  submitted  that  in  the  instant  case

certain vital documents which could have had

a bearing on the decision of the Detaining

Authority while passing the detention order,

had  not  been  placed  before  the  Detaining

Authority as the same were in the detenu’s

favour  and  upon  considering  the  same  the

Detaining Authority may not have issued the

said  detention  order.   Mr.  Chaudhary

submitted that the representation which had

been made by the detenu on 12.12.2005, the

agreement dated 9.11.07 executed between the

detenu and his agents for using the resort

for which the vehicles had been imported, the

relevant  portions  of  the  Settlement

Commission’s  order  by  which  the  detenu  had

been  absolved  of  all  criminal  proceedings,

and the writ petition filed by the detenu,

would  have  convincingly  placed  the  case  of

the detenu before the Detaining Authority had

they  been  before  the  said  Authority  for

consideration. It was further submitted that

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non-supply  of  the  said  documents,

irrespective of whether they had originated

from  the  detenu  himself,  had  prevented  the

detenu  from  making  an  effective

representation  against  the  detention  order,

since without having the documents in front

of him, it was not possible for the detenu to

remember the contents of the said documents

in their entirety, which contained in detail

the  stand  of  the  detenu.  By  depriving  the

detenu of the said documents he was deprived

of the right guaranteed to him under Article

22(5) of the Constitution which was mandatory

and any breach thereof had been held by this

Court  to  be  sufficient  to  vitiate  the

detention order.

18.  Mr.  Chaudhary  derived  support  for  his

aforesaid  contention  from  the  decision  of

this  Court  in  M.  Ahamedkutty  v.  Union  of

India  [(1990)  2  SCC  1],  wherein  it  was

reiterated that the right under Article 22(5)

is  a  right  to  make  an  effective

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representation  and  when  some  documents  are

referred to or relied on in the grounds of

detention, without copies of such documents,

the  grounds  of  detention  would  not  be

complete.  The  detenu,  therefore,  had  the

right  to  be  supplied  with  the  grounds  of

detention along with the documents which were

referred to or relied upon and if there was

failure  or  even  delay  in  furnishing  those

documents,  it  would  amount  to  denial  of

making  an  effective  representation.  It  was

also observed that it was immaterial whether

the detenu already knew about their contents

or  not,  but  the  non-supply  of  the  copies

thereof was fatal as was held in Mehrunissa

v. State of Maharashtra [(1981) 2 SCC 709].

It was emphasised that in order to appreciate

this point it would have to be kept in mind

that the detenu is in jail and has no access

even to his own documents.

19. Learned counsel submitted that in the case of

Ashadevi  wife  of  Gopal  Ghermal  v  K.Shivraj

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[(1979) 1 SCC 222], this Court had indicated

that if material or vital facts, which could

influence the mind of the Detaining Authority

one way or the other on the question whether

or not to issue the detention order, are not

placed before the Detaining Authority or are

not  considered  by  the  said  authority,  it

would  vitiate  its  subjective  satisfaction

rendering the detention order illegal.

20.   Learned  counsel  submitted  that  the  said

view  had  thereafter  been  consistently

followed,  with  minor  variations,  since  the

personal  liberty  of  a  citizen  was

prejudicially  affected  by  the  passing  of  a

detention  order  which  enabled  the  State

authorities  to  detain  a  citizen  without  a

trial.  Learned  counsel  submitted  that,  in

fact,  the  Detaining  Authorities  have  been

held  to  the  rigors  of  the  detaining

enactments while passing detention orders as

would also be clear from the decision of this

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Court  in  Sk.  Nizamuddin  v  State  of  West

Bengal [(1975) 3 SCC 395],  where the delay

of  two and a  half months in  detaining the

petitioner therein pursuant to the orders of

detention,  was  held  to  cast  considerable

doubts on the genuineness of the subjective

satisfaction of the detaining magistrate and

prompted  this  Court  to  quash  the  detention

order.

21. Learned  counsel  submitted  that  the  views

expressed in Ashadevi’s case (supra) and in

various other similar cases were subsequently

referred to and relied upon in State of U.P.

v  Kamal  Kishore  Saini  [(1988)  1  SCC  287],

while quashing the detention order impugned

in the said case.

22. Learned  counsel  for  the  detenu  lastly

contended that when the Settlement Commission

set  up  under  the  Customs  Act,  1962,  had

absolved  the  detenu  from  all  criminal

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prosecution  after  a  settlement  had  been

reached, the Detaining Authority had issued

the detention order only with the intention

of  by-passing  the  order  of  the  said

Commission  and  rendering  the  same

ineffectual.  It  was  submitted  that  in  such

circumstances no interference was called for

with the order of the High Court which had

rightly quashed the order of detention issued

against the detenu on 12.12.2005.

23. Keeping in mind the fact that of all human

rights  the  right  to  personal  liberty  and

individual  freedom  is  probably  the  most

cherished, we can now proceed to examine the

contention advanced on behalf of the parties

in the facts and circumstances of this case.

But before we proceed to do so, it would be

apposite  to  reproduce  herein  below  a  verse

from  a  song  which  was  introduced  in  the

cinematographic  version  of  Joy  Adamson’s

memorable classic ‘Born Free’, which in a few

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simple  words  encapsulate  the  essence  of

personal liberty and individual freedom and

runs as follows:

“Born free, as free as the wind blows,

As free as the grass grows,

Born free to follow your heart.

Born free and beauty surrounds you,

The world still astounds you,

Each time you look at a star.

Stay free, with no walls to hide you,

You’re as free as the roving tide,

So there’s no need to hide.

Born free and life is worth living,

It’s only worth living, if you’re born free.”

24. The  aforesaid  words  aptly  describe  the

concept of personal liberty and individual

freedom which may, however, be curtailed by

preventive  detention  laws,  which  could  be

used  to  consign  an  individual  to  the

confines of jail without any trial, on the

basis of the satisfaction arrived at by the

Detaining Authority on the basis of material

placed  before  him.  The  Courts  which  are

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empowered to issue prerogative writs have,

therefore,  to  be  extremely  cautious  in

examining the manner in which a detention

order is passed in respect of an individual

so that his right to personal liberty and

individual freedom is not arbitrarily taken

away  from  him  even  temporarily  without

following the procedure prescribed by law.

25. We  have  indicated  hereinbefore  that  the

consistent view expressed by this Court in

matters relating to preventive detention is

that while issuing an order of detention,

the  Detaining  Authority  must  be  provided

with all the materials available against the

individual concerned, both against him and

in his favour, to enable it to reach a just

conclusion  that  the  detention  of  such

individual is necessary in the interest of

the  State  and  the  general  public.  It  has

also been the consistent view that when a

detention order is passed all the material

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relied upon by the Detaining Authority in

making such an order, must be supplied to

the  detenu  to  enable  him  to  make  an

effective  representation  against  the

detention order in compliance with Article

22(5) of the Constitution, irrespective of

whether he had knowledge of the same or not.

These have been recognized by this Court as

the  minimum  safeguards  to  ensure  that

preventive detention laws, which are an evil

necessity,   do  not  become  instruments  of

oppression  in  the  hands  of  the  concerned

authorities or to avoid criminal proceedings

which would entail a proper investigation.  

26. In  most  cases  the  decision  of  this  Court

have gone in favour of detenu when even one

of the grounds of detention did not satisfy

the rigors of proof of its genuineness as a

foundational fact in support  thereof. The

decisions  rendered  in  Ashadevi’s  case

(supra), Mehrunissa’s case (supra), Ayya @

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Ayub’s  case  [(1989)  1  SCC  374]  and

Ahamedkutty’s  case,  all  referred  to

hereinbefore, have relied on the principle

that  although  the  State  is  empowered  to

issue orders of preventive detention, since

the  liberty  of  an  individual  was  in

question, such power should be exercised by

the Detaining Authority on consideration of

relevant  material,  both  against  and  in

favour  of  the  individual  concerned,  to

arrive  at  a  just  conclusion  that  his

detention was necessary  in the interest of

the  public  and  to  prevent  him  from

continuing  to  indulge  in  activities  which

are  against  the  public  interest  and  the

interest of the State.

27. This brings us to the next question as to

whether even such material as had not been

considered by the Detaining Authority while

issuing the detention order, is required to

be supplied to the detenu to enable him to

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make an effective representation against his

detention.

28. The  decisions  cited  by  the  Learned

Additional Solicitor General in support of

his contention that all documents mentioned

in the detention order were not required to

be served on the detenu, such as in J. Abdul

Hakeem’s  case  (supra),  takes  note  of  the

earlier  decisions  in  Ahamedkutty’s  case

(supra)  and  Radhakrishnan  Prabhakar’s  case

(supra) which had make it mandatory for the

Detaining Authority to supply copies of all

documents which had been relied upon by the

Detaining Authority to the detenu,  whether

he had knowledge of their contents or not.

Of course, in Radhakrishnan Prabhakar’s case

(supra) it was also made clear that there is

no legal requirement that a copy of every

document mentioned in the order has to be

supplied to the detenu. What is, therefore,

imperative is that copies of such documents

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which had been relied upon by the Detaining

Authority for reaching the satisfaction that

in  the  interest  of  the  State  and  its

citizens  the  preventive  detention  of  the

detenu is necessary, have to be supplied to

him.  Furthermore,  if  in  this  case,  the

detenu’s  representation  and  writ  petition

had  been  placed  before  the  Detaining

Authority,  which  according  to  the  detenu

contained  his  entire  defence  to  the

allegations made against him, the same may

have weighed with the Detaining Authority as

to  the  necessity  of  issuing  the  order  of

detention at all.

29.  We  are  inclined  to  agree  with  the

submissions made on behalf of the respondent

that,  notwithstanding  the  nature  of  the

allegations  made,  he  was  entitled  to  the

assurance  that  at  the  time  when  the

detention  order  was  passed  all  the

materials,  both  for  and  against  him,  had

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been  placed  for  the  consideration  of  the

Detaining Authority and had been considered

by it before the detention order was passed,

having  particular  regard  to  the  orders

passed  by  the  Settlement  Commission

appointed  under  the  provisions  of  the

Customs Act, 1962, which absolved the detenu

from all criminal prosecution.

30. In the instant case, as some of the vital

documents which have a direct bearing on the

detention order, had not been placed before

the  Detaining  Authority,  there  was

sufficient ground for the detenu to question

such omission. We are also of the view that

on  account  of  the  non-supply  of  the

documents mentioned hereinbefore, the detenu

was  prevented  from  making  an  effective

representation against his detention.

31. In the said circumstances, we do not see any

reason to interfere with the judgment and

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order of the High Court and the appeal is

accordingly dismissed.

32. In parting, we may reiterate what we have

indicated  hereinbefore,  that  since  the

personal liberty and individual freedom of a

citizen  is  curtailed  by  an  order  of

preventive  detention,  the  Detaining

Authorities must apply their minds carefully

and exercise great caution in passing such

an  order  upon  being  fully  satisfied  from

materials which are both for and against the

detenu that such an order is required to be

passed in the interest of the State and for

the public good.

………………………………………J. (ALTAMAS KABIR)

………………………………………J. (MARKANDEY KATJU)

New Delhi Dated:  16.9.2008

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